PSYCHOLOGICAL PROFILING: - University of Oregon



PSYCHOLOGICAL PROFILING:

TENUOUS VALIDITY AS EVIDENCE FOR CONVICTION IN U.S COURTROOMS

EMILY CHARRIER

Robert Miller

Quick Yeates-Burghart

Psychology and Law

University of Oregon

Introduction 3

Argument 4

Limitations of Small Data Pool 4

Non-standardized Profiling Methodology 7

Diversity of Background Fields lead to lack of Communication Between Profilers 8

Consequence of Evidence 11

Opinion on Ultimate Issue 12

Constitutionality & Probable Cause 12

Conclusion 13

References 15

Introduction

PSYCHOLOGICAL PROFILING HAS GAINED ATTENTION AS A DOUBLE-EDGED SWORD IN U.S COURTROOMS. POPULAR MEDIA HAS CAST IT AS A SOLID, PREDICTING FORCE FOR THE BEHAVIORAL PATTERNS AND ACTIONS OF VIOLENT CRIMINALS. THE SCIENTIFIC COMMUNITY AND SUBSEQUENT LITERATURE CONTEST THE CLAIMS OF OBJECTIVE, SCIENTIFIC VALIDITY WITHIN A COURTROOM SETTING. WHETHER PROFILING SHOULD BE ALLOWED INTO A COURTROOM AS A PIECE OF EVIDENCE AGAINST A DEFENDANT IS ULTIMATELY DECIDED BY A JUDGE ON A CASE-BY-CASE BASIS. IN THIS CASE, THE PROSECUTION ATTEMPTED TO SUBMIT A SERIAL KILLER’S PERSONALITY PROFILE AS EVIDENCE TO THE COURT, CLAIMING THAT THE DEFENDANT MATCHED THE CHARACTERISTICS THEREOF. THE COURT RULED IN FAVOR OF THE PROSECUTION’S REQUEST, AND THE DEFENDANT WAS CONVICTED. THIS BRIEF WILL CONTEST THE CORRECTNESS OF THE COURTS DECISION TO ALLOW THE PROFILE TO BE ADMITTED AS EVIDENCE.

The primary support for disallowing psychological profiling into a case comes from the Federal Rules of Evidence. Rule 702 as amended in December 2001 states that the only time expert testimony is admissible in court is when, “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Psychological profiling is a relatively young discipline that uses non-standardized methodologies and lacks the scientific reliability that Rule 702 requires. There has not been sufficient testing on the practice to determine if it is effective or accurate enough for courtroom applications (Mauro, 2005).

In addition, this brief will show that there are two distinctly different methods of profiling and that they are not equivalent. Depending on the methodology utilized to compile a profile, it cannot be corroborated that the expert witness “applied the principles and methods reliably to the facts of the case”. Rule 403 states that evidence can be thrown out if the danger of introducing bias to the jury outweighs the value of the evidence. Claiming that the defendant fits a criminal profile has an immediate potential to influence the jury’s perception of the case. Due to doubts about the scientific reliability of profiling and the danger of introducing prejudice to the jury, stating that the defendant fits a criminal profile should not be admissible in court as evidence.

Argument

LIMITATIONS OF SMALL DATA POOL

Profiling was not a frequently used tool until the 1970’s when the FBI developed a Behavioral Sciences Unit. FBI investigators Robert Ressler and John Douglas helped to create one of the current standards of profiling used modernly. Throughout the 70’s and 80’s Ressler and Douglas interviewed 36 serial killers that had been caught and imprisoned (Parker, 2002). Among this group were several “celebrity” killers such as Charles Manson and David “Son of Sam” Berkowitz. Based on these interviews a number of statistics were drawn up of what a “typical” serial killer’s psychological profile would contain (Glazer, 2003). Today, FBI agents continue to interview serial killers to add to this profile.

Most commonly, a profiler compares personality traits and observed behaviors of an individual to the recorded behaviors of a small, under-represented group of offenders. Statistical information derived from a small sample results in large confidence intervals and an inaccurate pool for the profiler to draw conclusions from. Many studies in this vein caution that there are fundamental problems with predicting behavior based on a limited, known group (Turvey, 1995). Ideally, researchers try to achieve large samples that are representative of the mean characteristics that describe a population (Gravetter & Walneau, 2002).

Due to the scarcity of serial killers, estimated to commit less than one percent of all homicides, it is apparent that there is still a good deal left to learn (Glazer, 2003). There are many theories about the life events that create a serial killer, ranging from psychological problems to abusive childhoods. It is generally accepted that some psychosocial background traits have been linked to an increased likelihood that violent offenders will continue to commit violent crimes in the future (Valenzuela, Villanueva, Aguilera & Luna, 1991). However, it is important to note that while results may be indicative of future violence, they do not suggest murder (Pinta, Bessimer, Smeltzer & Fine, 1990). Ultimately, there is no definitive answer as to what drives a person to become a serial murderer. We do not understand serial killers and therefore cannot make conclusions through profiles about whom they are. It is tenuous to infer any concrete behaviors or personality patterns from this limited data (Glazer, 2003).

Yet, there is some advantage in having a small, non-representative sample to use as the standard. Small samples generally have less variability than whole populations. In some instances a small sample can also have a small variability if the subjects are homogeneous and different from the population. One argument for psychological profiling is that serial killers are similar to one another behaviorally, but different from the general population. Following this, any statistically supportable facts that can be obtained from the pool may be incorporated into or used in comparison to the profile of the suspect. On the other hand, by drawing conclusions from this incomplete body of information, the profiler must make some inferences. Primarily, that the behavior and characteristics of the individual in question can be generalized and predicted from statistical analyses of the same traits within a population of rare criminals (Turvey, 1998). This is partially supported by the literature, but only for short-term predictions (Hall, Catlin, Boissevain & Westgate, 1984). In the recent case of the Washington D.C. snipers, profilers fell flat when the young, solitary white male working alone turned out to be a “father-son” pair of black men working together (Parker, 2002).

Additionally, the profiler must assume that an individual’s behavior and motivation are static, predictable features rather than novel or spontaneous developments within a unique being. There is accepted recognition in the literature that criminal motives and behavior patterns are diverse, rather than static (Cornell, Benedek & Benedek, 1987). Moreover, many questions have been raised about the reliability of self-reported survey and interview information submitted by criminals (Godwin, 1998). There is no way of knowing what aspects of an interview are truthful. Their reliability can be significantly lessened in the face of recorded inconsistencies. For example, Ted Bundy never admitted the actual number of killings he committed. His claims ranged from 3 to 300 and nothing was ever proven (Glazer, 2003). Furthermore, when asked why he committed the murders, he couldn’t coherently explain his thoughts or reasons (Glazer, 2003). If someone so familiar with the act of murder cannot articulate his own reasoning on the subject, how can anyone who never felt the urge to kill do so? (Glazer, 2003). Finally, it is important to note that these interviews are based only on killers that have been caught. They exclude an entire demographic of serial killers that remain undiscovered or free in the population. For example, Jack-the-Ripper authored a series of letters to the police, but was never apprehended. Dr. Bond’s profile was based both on these letters and forensic evidence; however, the accuracy of his profile will never be known.

Non-standardized Profiling Methodology

Psychological profiling is a complex topic that cannot be argued for or against without additional clarification of the methodologies utilized. There are two generally recognized methods to compile a profile, deductively or inductively. However, they are dichotomous and generally unequal in validity. Deductive profiling is rarely used in the courtroom and is usually not the focus of scientific critique, nor the focus of this argument. The deductive process concentrates on cases of individual offenders by compiling unique psychological profiles across a relatively long period of time. It makes use of physical evidence to reconstruct the signature behaviors and motivations of violent criminals (Turvey, 1998). Inductive profiling is based on statistical figures drawn from known populations of criminals, intuitive or anecdotal guesses on the part of the profiler and public data sources (Holmes, 1989). This technique is simple to use, requires little experience and is a fast way to build a general profile (Turvey, 1998). It is the more popularly utilized, glamorized and criticized method. Arguments against the inductive method rally around three important issues. First, it uses statistical information from a small, known population of criminals to infer generalized information about individuals. Second, the data collected and used to create a profile comes from a totally known source. It is incapable of taking criminals outside this recognized set into account. This leads to a one-sided profile that comes from an unrepresentative sample. Third, the forced ambiguity of a profile compiled by the inductive method will naturally carry a percentage of inaccurate details. The descriptions included in profiling are vague and can be interpreted to encompass a wide variety of people. Under Rule 403 of the Federal Rules of Evidence, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” An over-inclusive profile may serve to confuse the jury’s impressions of a defendant by introducing vague information with limited relevance to the case (Bailey, 2001). These details and exuberant profilers have been known to complicate investigations with false positives (Alison, Bennell, Mokros & Ormerod, 2002).

The differences between inductive and deductive profiling methodology create a breach in the continuity of the underlying theory, making it difficult to accept using these processes in a courtroom setting. Both sides claim that their research is valid, yet peck at one another in the literature over details (Baeza & Mcgrath, 2000). Such conflict within the field implies that the principles and methods are neither well understood nor cohesive. How could the testimony from an expert in the field be trusted when the literature itself cannot decide who the experts are? The debated lack of accuracy makes profiles inadmissible in court under rule 702, and should not be entered in this case.

Diversity of Background Fields lead to lack of Communication Between Profilers

The discipline of profiling has been developed from bits and pieces of many scientific fields. It draws individuals from the ranks of forensic psychology and psychiatry, criminology, the FBI, state and local law enforcement and others (Turvey, 1998). Due to this, profilers as a group tend to be varied in their methodologies, interpretation styles, compiling procedures and personal experiences (Jackson & Bekerian, 1997). This variation is criticized as one of its largest deficiencies. For one, the professionals typically involved in profiling do not always have well-rounded training in forensic psychology, psychopathology, investigative procedure or specific experience with investigating serial killers (Turvey, 1998). In addition to being varied as a group, each profiler uniquely applies methodology and techniques. Profiling is not a uniform or standardized discipline as such it is difficult to justify its use in courtrooms. Rule 702 states that the testimony of the expert must be “the product of reliable principles and methods”. If a profiler has no practical field experience with these fundamental aspects of criminal psychology and investigation, how are their conclusions valid? Furthermore, how are they able to testify as expert witnesses on a subject they not an expert on?

To date there is no agreed upon definition or typographical model for violent serial criminals. A major hurdle for both the fields of mental health and law enforcement is finding common experience enough to standardize a definition and classification process (Turvey, 1995). There is little overlap between the disciplines of crime scene investigation and psychology, psychopathology and human behavioral study. This lack of cohesiveness leads to a confusion of dialect definitions between law enforcement agencies and forensic social scientists. Profiles compiled on the same subject by different profilers will often be radically different because of these dialectical differences (Jackson & Bekerian, 1997).

The field of profiling has been criticized for the differences in opinions between professional profilers. In a recent study by Kocsis (2003) participating profilers were accurate as a group, but rather inconsistent as individuals (of 47 invited profilers, only 11 chose to participate in the study). This large variance in expert opinions indicates a lack of theoretical cohesiveness and scientific reliability in the processes involved in developing criminal profiles. Inconsistency of this magnitude brings Rule 702 into sharp relief. Such uncertainty is problematic because it raises the question of whether the profile compared to the defendant was reliably compiled.

There is intense debate within the fields that comprise the discipline of profiling in regard to its legitimacy as a scientific instrument (Glazer, 2003). The principles, methodology and individuals that make up this discipline are in disarray. Lack of communication within and between professional groups involved is evident. Due to the lack of agreement over this practise among the professionals in the field, including a profile in court is against the ruling set forth by US vs. Frye (1923).

State vs. Fortin, State vs. Haynes and State vs. Anthoney are three cases where judges have refused to allow criminal profilers to testify, or allowed criminal profiles to be used as character evidence. “Courts refusal to admit into evidence criminal psychological profiles is based on the grounds that they constitute impressible character testimony, improper subject for scientific or expert testimony, and unduly prejudicial evidence” (Ingram, 1998). The court decisions in these cases should be upheld and applied until science can prove the reliability of psychological profiles. As such the profile in this case should be inadmissible in evidence as well.

Consequence of Evidence

It is not known under which rules of evidence the court allowed either the profile or the profiler’s opinion. As previously discussed, the three conditions leading to the inclusion of evidence with Rule 702 are that there is sufficient data, reliable methods or principles, and that it is applied correctly. Under Rule 702 it is apparent that the court has erred because in order to include testimony all three conditions must be met. The deficit of any of the conditions would exclude the profile from use as evidence. As shown, there is a very probable deficit in all conditions due to the poor state of the art of psychological profiling.

If the court included the evidence under Rule 703, which states that, “If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted,” then the trial court erred as well. This brief shows that the dialectical and methodological differences would not permit room for facts or data that could be reasonably relied upon to form opinions by a consensus of experts because they differ so greatly. Even under the assumption that the facts and data fit this condition, the inclusion of the profile in trial court is unjustifiable as “Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.” (Rules of Evidence, 703). Profiles consistently use ambiguous language and the Barnum effect is likely to prejudice the jury, as it has prejudiced police officers and other subjects in Kocsis’ studies (2004; I, II, III). The assumption that the facts and data could be reasonably be relied upon is not relevant owing to Rule of Evidence 704(b).

Opinion on Ultimate Issue

Rule of Evidence 704(b) specifies that “No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.” A psychological profile is a collection of inferences and opinions regarding the mental state or condition of the defendant. The prosecution introduced evidence to show that the defendant fits the profile of a serial killer. Because the evidence and testimony infer that the defendant’s mental condition – allegedly that of a serial killer – constitutes an element of the crime charged with, it is inadmissible in court. Under rule 704(b) the profiler is not permitted to provide testimony on the requisite mens rea of the defendant.

Constitutionality & Probable Cause

The United States legal system favors “the right of the people to be secure in their own persons… against unreasonable searches and seizures… but upon probable cause ” (Bill of Rights; Amendment IV). Profiles at the time of this writing successfully identify offenders only 17% of the time (Kocsis, 2003). A 17% success rate is not enough to make a case for probable cause. It is not constitutionally sound to convict a person solely on the grounds that they fit a description. U.S. v. Lopez (1971) questioned the wisdom of detaining potential violators on the grounds that they might commit crimes in the future:

Furthermore, if we optimistically predict that in a pool of 1000 defendants, 17% were convicted and 90% of those are actually guilty, then we have set 83 guilty people free and convicted 17 innocent people.

| |Sentenced |Not Sentenced | |

|Guilty |(.17)(.9) x 1000 = 153 |(.83)(.1) x 1000 = 83 |236 |

|Innocent |(.17)(.1) x 1000 = 17 |(.83)(.9) x 1000 = 747 |754 |

| |(.17) x 1000 = 170 |(.83) x 1000 = 830 |1000 |

This means that profiling is violating the constitution more often than it is offering justice when using unrealistically conservative figures. We must still take into account inaccuracies such as profile ambiguity, profiler bias and attempts to execute a speedy trial by the legal system – reducing the amount of forensic evidence – and thus rendering our optimistic numbers inadequate. The probabilities of convicting innocent people and permitting criminals to go free would outweigh the probabilities of convicting the actual criminal.

Conclusion

THE LAWS OF EVIDENCE REGARDING EXPERT TESTIMONY WERE SET FORTH BY SEVERAL COURT CASES. IN THE CASE OF US V FRYE (1923), THE U.S. SUPREME COURT RULED THAT A SCIENCE MUST BE GENERALLY ACCEPTED IN ITS FIELD. IN DYAS VS. US (1977) THE COURTS RULED THAT THE “STATE OF ART MUST BE SUFFICIENTLY ADVANCED”. THIS SECOND RULING MEANS THAT THE PRACTICE MUST HAVE A SOLID SCIENTIFIC BASIS. PROFILING FITS INTO NEITHER OF THESE CATEGORIES. AS SHOWN THROUGH THE POSED ARGUMENTS, THE EXPERTS IN THE FIELD OF PSYCHOLOGY, FORENSICS, AND LAW ENFORCEMENT CANNOT AGREE ON A STANDARDIZED METHODOLOGY, WHO IS AN “EXPERT”, WHETHER OR NOT THERE IS VALIDITY IN INDUCTIVE PROFILING OR WHAT DIRECTION THE FIELD SHOULD MOVE IN. THE SCIENTIFIC BASIS FOR PROFILING IS QUESTIONABLE. DICHOTOMOUS METHODOLOGY MAKES IT DIFFICULT TO COMPARE PROFILES SCIENTIFICALLY. THOSE COMPILED USING THE INDUCTIVE METHOD ARE OFTEN SUBJECTIVELY BIASED. ALSO, THERE IS NOT ENOUGH KNOWN ABOUT SERIAL KILLERS TO MAKE ACCURATE ASSUMPTIONS REGARDING THEIR MOTIVES AND BEHAVIORAL CHARACTERISTICS.

Profiling may be a potential way to limit suspects in an on-going investigation. However, it is not yet state-of-the-art and is inadmissible in the courtroom as testimony on an ultimate issue. At this point in time, more research needs to be done on psychological profiling before it can legitimately be used as evidence in a trial. The trial court has erred in its decision to allow the testimony and evidence of a profiler and should reverse its decision.

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